Overstreet v. Moser

BLAND, P. J. To reverse the judgment appellant assigns as error: first, the submitting to the jury the question whether or not respondent intended to become a guest of the hotel; second, that instructions numbered 1, 2 and 4, given for respondent are erroneous; and, third, the admission of illegal and improper evidence over the objections of appellant. The instructions objected to are as follows: “1. Now if yon find and believe from the evidence that on or about the twentieth of November, 1895, the plaintiff went to the hotel of the defendant for the purpose of becoming a guest therein, and that he did become such guest in the defend [78] ant’s hotel; and if yon further ñnd and believe from the evidence that said hotel was at the time a public hotel for the reception of the public generally, and that while the said plaintiff was such guest and in said hotel, one Tony Schmidt was the servant of the defendant in said hotel, and that the said Tony Schmidt, while acting as the agent and servant or employe of the defendant, and while acting in the execution of the duties which the said Tony Schmidt had been employed by the defendant to perform, did make an assault upon and wound and injure the plaintiff, without legal or justifiable excuse for so doing, as explained in instructions numbered 3 and 4, then you should find for the plaintiff.” “2. You are further instructed that, although you may believe from the evidence that before the plaintiff ascended the stairway to go to the sleeping apartments of the defendant’s hotel, he was informed by the persons in charge of the office of said hotel, that he could not be allowed to go to said apartments, and although you shall further believe from the evidence that notwithstanding this information the plaintiff did go up said stairway for the purpose of entering said sleeping apartments, still if you also find from the evidence that in so doing the plaintiff was conducting himself in a quiet and orderly manner, then and in suph case you are instructed that the employee of the defendant, in preventing the plaintiff from entering said sleeping apartments, had no right to use any more force than was reasonably necessary to prevent the plaintiff from entering said apartments. And if you shall find and believe from the evidence that the said employee, in his endeavor to prevent the plaintiff from entering said apartments, used any more force against the plaintiff than was -reasonably necessary to prevent him from entering said premises, your verdict should be for the plaintiff. “4. You are further instructed that if you believe and [79] find from tbe evidence that on or about tbe twentieth of November, 1895, tbe plaintiff, M, E. Overstreet, entered tbe defendant’s hotel not as a guest, but for tbe purpose of awakening bis friend, one Thomas Stem, then a guest in said hotel, and that upon entering said hotel be made bis business known to those in charge of tbe office of said hotel and that plaintiff was then and there informed by them that be could not be allowed to go to the' sleeping apartments of bis friend; but notwithstanding this tbe plaintiff persisted in and did endeavor to enter tbe sleeping apartments of said hotel, and that before be arrived at said sleeping apartments tbe defendant’s servant, Tony Schmidt, requested plaintiff to leave said apartments, and that plaintiff refused to leave, and that thereupon tbe defendant’s servant gently laid bands upon him and used only such force as was reasonably necessary to remove him from said apartments of said hotel, and that thereupon tbe plaintiff assaulted tbe defendant’s servant, and that defendant’s servant resisted said assault and that in so doing tbe plaintiff received tbe injuries complaned of, then you must find in favor of .the defendant.” I. According to respondent’s evidence be did not resort to tbe hotel for tbe mere purpose of obtaining a meal at tbe restaurant, but as a transient person be went to tbe hotel for tbe purpose of obtaining tbe accommodations provided for tbe safe-keeping of bis bundles, for tbe comforts, accommodations and protection afforded by tbe hotel rotunda as well as for tbe purpose of obtaining a meal at tbe restaurant, and that bis purposes were made known and assented to by tbe person in charge of tbe hotel office. There was, therefore, evidence that be was a guest of tbe hotel, according to the following definition of a guest of an inn, given by tbe 16 Eng. and Am. Eney. of Law, p. 576, as tbe sum of 'all tbe definitions given by tbe judges and test-books, to-wit, “A guest is a transient person who re [80] sorts to and is received at an inn for tlie purpose of obtaining the accommodations which it purports to afford.” It was, therefore, proper to submit the question to the jury. Gannon v. Laclede Gas Light Co., 145 Mo. 502; Hadley v. Orchard, 17 Mo. App. 141; Hester v. Fidelity & Casualty Co., 78 Mo. App. 505; Hutt v. Dale, 76 Mo. App. 671; Kahn v. Troll, 72 Mo. App. 321; Milligan v. R’y Co., 79 Mo. App. 394. But we do not think the right of respondent to recover is at all dependent upon the fact that he was a guest of the hotel, within the legal meaning of the term. The undisputed facts are that appellant kept a public house for the accommodation of the public, that the respondent resorted to this house for some of the accommodations it afforded and was rightfully in the house. This being his status with respect to the hotel, if he was wantonly and ruthlessly assaulted by appellant’s .servant, the appellant must respond in damages for the malicious act. Haehl v. Wabash R’y Co., 119 Mo. 343; Faber v. Mo. Pac. Ry. Co., 139 Mo. 272; Ephland v. Mo. Pac. R’y Co., 137 Mo. 187; s. c., 71 Mo. App. 587; Knowles v. Bullene, 71 Mo. App. 341. II. There is no error in the second instruction. It is in exact harmony with both the civil and criminal law, and is in accord with reason, and the instincts of common humanity. III. The criticism of the fourth instruction is answered by the first paragraph of this opinion. IV. It is contended by appellant that the court erred by the admission of evidence of the discharge of Schmidt by Moser after the assault was made on respondent. The record does not show that this evidence was objected to or any exceptions saved to its admission. Nor does the record show that there was any objection saved to that part of respondent’s evidence in which he stated that Moser told him just after the assault, that Schmidt, previous to that occasion had made an [81] assault on one of tbe bell boys, tbe admission of wbicb tbe appellant assigns as error. Discovering no reversible error in tbe record, tbe judgment is affirmed. All concur.